Adoption by Persons of Other Religions: the Juvenile Justice Act and the CARA Regulations

Sub-section (4) makes this Act the only route abroad. No inter-country adoption may be made under the Hindu Act.

The subject-matter is limited. Chapter VIII is about the orphan, abandoned and surrendered child, and about relative adoption. It is a child-protection statute, and adoption is one of the outcomes it provides.

Section 57: who may adopt

Sub-section (1). Prospective adoptive parents shall be physically fit, financially sound, mentally alert and highly motivated to adopt a child, for providing a good upbringing to him.

Sub-section (2). In the case of a couple, the consent of both spouses is required.

Sub-section (3). A single or divorced person may also adopt, subject to the criteria and the adoption regulations.

Sub-section (4). A single male is not eligible to adopt a girl child.

Sub-section (5). Any other criteria specified in the adoption regulations.

Compare that with sections 7, 8 and 11 of the Hindu Act. There, capacity turns on soundness of mind, majority and the spouse's consent, and section 11 imposes the twenty-one year age gap and the bar on a second child of the same sex. Here, capacity turns on fitness to parent, assessed by an agency, and the only categorical bar in the section is sub-section (4).

Section 58: the procedure for Indian parents living in India

The five steps, and they should be learned as a sequence.

(1) Indian prospective adoptive parents living in India, irrespective of their religion, if interested in adopting an orphan, abandoned or surrendered child, apply to a Specialised Adoption Agency in the manner provided in the regulations.

(2) The Agency prepares a home study report of the parents and, on finding them eligible, refers a child declared legally free for adoption to them, with the child study report and medical report.

(3) On receiving the parents' acceptance of the child, signed along with those reports, the Agency gives the child in pre-adoption foster care and files an application before the District Magistrate for the adoption order.

(4) On receiving a certified copy of the order passed by the District Magistrate, the Agency sends it immediately to the parents.

(5) The progress and wellbeing of the child in the adoptive family is followed up as provided in the regulations.

The words "irrespective of their religion" in sub-section (1) are the answer to MU's question in five words, and they are worth quoting.

Sections 59 and 60: inter-country and relative adoption

Section 59 governs inter-country adoption of an orphan, abandoned or surrendered child. Its opening condition is the one to remember: such a child may be placed with a foreign or overseas prospective adoptive parent only if the child could not be placed with an Indian or non-resident Indian parent, despite the joint efforts of the Specialised Adoption Agency and the State Agency, within sixty days of being declared legally free for adoption.

That sixty-day rule expresses the policy of the whole scheme: a child is placed in India if India can place him.

Section 60 governs inter-country relative adoption.

Section 61: the adoption order

Sub-section (1). Before issuing an adoption order the District Magistrate shall satisfy itself that:

(a) the adoption is for the welfare of the child; (b) due consideration is given to the wishes of the child, having regard to the child's age and understanding; and (c) neither the prospective adoptive parents has given or agreed to give, nor the specialised adoption agency or the parent or guardian of the child has received or agreed to receive, any payment or reward in consideration of the adoption, except as permitted under the adoption regulations towards the adoption fees, service charge or child care corpus.

Sub-section (2). The adoption proceedings shall be held in camera, and the case shall be disposed of by the District Magistrate within two months from the date of filing.

The words "District Magistrate" in both sub-sections were substituted for "court" by the 2021 amendment, in force from 1 September 2022. That is the single most important currency point in this chapter.

The welfare test in clause (a) and the child's wishes in clause (b) are the same pair as in section 9(5) of the Hindu Act, and the payment prohibition in clause (c) is the same policy as section 17 of that Act, taken in [The Effects of an Adoption].

Section 62: documentation, and the four-month rule

Documentation and procedural requirements not expressly provided in the Act are as per the adoption regulations. And the Specialised Adoption Agency shall ensure that the case is disposed of within four months from the receipt of the application, with the authorised foreign adoption agency, the Authority and the State Agency tracking progress and intervening to keep to the timeline.

Two time limits, therefore, and they are different: four months for the agency's part of the process under section 62(2), and two months for the District Magistrate under section 61(2).

Section 63: the effect of the adoption

A child in respect of whom an adoption order is issued by the District Magistrate shall become the child of the adoptive parents, and the adoptive parents shall become the parents of the child, as if the child had been born to them, for all purposes, including intestacy, with effect from the date the order takes effect; and from that date all the ties of the child in the family of his or her birth shall stand severed and replaced by those created by the order.

The proviso: any property which had vested in the adopted child immediately before that date continues to vest in the child, subject to the obligations attaching to its ownership, including the obligation to maintain relatives in the biological family.

Compare section 12 of the Hindu Act

The two are deliberately alike, and the differences are worth a line.

The words "including intestacy" in section 63 are worth noticing: they put beyond doubt that the child inherits from the adoptive parents, which for a community whose personal law knows no adoption is exactly what needed saying.

Sections 64 to 73: the machinery

Section 64: reporting. Information regarding all adoption orders issued by the District Magistrate shall be forwarded as prescribed.

Section 65: Specialised Adoption Agencies. The State Government shall recognise one or more institutions in each district as a Specialised Adoption Agency for the rehabilitation of orphan, abandoned and surrendered children.

Section 66: adoption of children residing in institutions not registered as adoption agencies.

Section 67: State Adoption Resource Agency, the State-level body.

Sections 68 to 71: the Central Adoption Resource Authority, its functions, its steering committee and its powers. CARA is the "Authority" referred to throughout the Chapter, and it is the body that frames the adoption regulations.

Sections 72 and 73: annual report and grants.

The Adoption Regulations 2022

MU's topic asks for the "CARA Rules", and the current instrument is the Adoption Regulations 2022, framed by the Central Adoption Resource Authority under this Act. They supply everything Chapter VIII leaves to regulation: the eligibility criteria in detail, the registration of prospective adoptive parents, the home study report, the referral and acceptance of a child, pre-adoption foster care, the procedure before the District Magistrate, post-adoption follow-up, the fees payable, and the procedure for inter-country and relative adoptions.

This book states the Regulations only at that level of generality. They run to 252 pages and no individual regulation is quoted here, because none has been read closely enough for this subject to be set out as a numbered provision. What a student needs, and what MU asks for, is that the regulations are made by CARA under the Juvenile Justice Act, that the current set is of 2022, and that they govern the whole process the Act leaves unspecified.

The two routes compared

A worked example

Farid and Ayesha, Muslims living in Pune, have no children. They want to adopt a two-year-old girl who was abandoned at a hospital and has been declared legally free for adoption. Farid's brother also wants Farid to take his own son, aged four, as his child.

Can they adopt the abandoned girl under the Hindu Adoptions and Maintenance Act? No, twice over. Section 2 of that Act does not apply to Muslims, and section 10(i) requires the child to be a Hindu.

What is the route? Chapter VIII of the Juvenile Justice Act 2015. Section 58(1) lets Indian prospective adoptive parents living in India, "irrespective of their religion", apply to a Specialised Adoption Agency.

What does the Agency do? By section 58(2) and (3) it prepares a home study report, refers a child declared legally free for adoption together with the child study report and medical report, obtains their signed acceptance, places the child in pre-adoption foster care, and files an application before the District Magistrate.

Who makes the order, and on what? The District Magistrate, since the 2021 amendment took effect on 1 September 2022. By section 61(1) he must be satisfied that the adoption is for the welfare of the child, that due consideration is given to the child's wishes having regard to age and understanding, and that no payment or reward has passed except the regulated fees. Proceedings are in camera and must be disposed of within two months.

Are they eligible? Section 57 requires them to be physically fit, financially sound, mentally alert and highly motivated; both spouses must consent. Nothing here disqualifies them.

Could Farid have adopted the girl alone? No. Section 57(4): a single male is not eligible to adopt a girl child.

And his brother's son? Section 56(2): adoption of a child from a relative by another relative may be made under this Act irrespective of their religion, so the relative route is open to them as well.

What does the order do? Section 63: the child becomes their child as if born to them for all purposes, including intestacy, and all ties in the family of birth are severed, save that property already vested in the child continues to vest in her with its obligations.

What it does NOT mean

The Juvenile Justice Act does not compete with the Hindu Act. Section 56(3) provides that nothing in it applies to an adoption made under the Hindu Adoptions and Maintenance Act.

It is not confined to non-Hindus. A Hindu may use it, and must use it for an inter-country adoption, because section 56(4) makes it the only route abroad.

"Irrespective of religion" does not mean the child's religion is disregarded elsewhere. It means it is no bar to who may adopt or be adopted under this Chapter.

The District Magistrate is not a court. The 2021 amendment moved the order out of the civil court, and a book that still sends the reader to court is teaching repealed procedure.

The two time limits are different. Two months for the District Magistrate under section 61(2); four months for the Specialised Adoption Agency under section 62(2).

Section 63 has no proviso preserving marriage prohibitions and no bar on divesting. Those are provisos (a) and (c) of section 12 of the Hindu Act and have no counterpart here.

Inter-country adoption is not a first option. Section 59 permits it only if the child could not be placed with an Indian or non-resident Indian parent within sixty days of being declared legally free for adoption.

Quick revision

• s.56: adoption is for the right to family of the orphan, abandoned and surrendered child; relative adoption irrespective of religion is allowed; the Act does not apply to a HAMA adoption; all inter-country adoptions are under this Act alone.
• s.57: parents must be physically fit, financially sound, mentally alert and highly motivated; both spouses must consent; a single or divorced person may adopt; a single male may not adopt a girl child.
• s.58: apply to a Specialised Adoption Agency, "irrespective of their religion"; home study report; referral with the child study and medical reports; acceptance; pre-adoption foster care; application before the District Magistrate; follow-up.
• s.59: inter-country adoption only if the child could not be placed in India within sixty days. s.60: inter-country relative adoption.
• s.61: the District Magistrate must find welfare, consider the child's wishes, and find no payment; in camera; two months.
• s.62: the Agency must dispose of the case within four months.
• s.63: the child becomes theirs for all purposes including intestacy, ties of birth severed, property already vested in the child kept with its obligations.
• ss.64 to 73: reporting, Specialised Adoption Agencies, the State Agency, and CARA, which frames the Adoption Regulations 2022.

Test yourself

1. Under which law may a Christian couple adopt an abandoned child, and why not under the Hindu Adoptions and Maintenance Act? Under Chapter VIII of the Juvenile Justice (Care and Protection of Children) Act 2015. The Hindu Act does not apply to them under its section 2, and its section 10(i) requires the child to be a Hindu.

2. Who makes the adoption order, and since when? The District Magistrate. The Juvenile Justice (Amendment) Act 2021 substituted "District Magistrate" for "court" throughout Chapter VIII with effect from 1 September 2022.

3. What must the District Magistrate be satisfied of before issuing an adoption order? That the adoption is for the welfare of the child; that due consideration is given to the wishes of the child having regard to the child's age and understanding; and that neither the prospective adoptive parents have given or agreed to give, nor the agency or the parent or guardian has received or agreed to receive, any payment or reward, except as permitted under the adoption regulations.

4. What is the effect of an adoption order under section 63? The child becomes the child of the adoptive parents, and they his parents, as if the child had been born to them, for all purposes including intestacy, from the date the order takes effect; all ties in the family of birth are severed and replaced. Property already vested in the child continues to vest in the child, subject to the obligations attaching to it, including the obligation to maintain relatives in the biological family.